Eden v. People

• Decision Date: 12 May 1896
• Citation: 43 N.E. 1108,161 Ill. 296
• Parties: EDEN v. PEOPLE.
• Court: Illinois Supreme Court

161 Ill. 296

43 N.E. 1108

EDEN

v.PEOPLE.

Supreme Court of Illinois.

May 12, 1896.

Error to criminal court, Cook county; John Gibbons, Judge.

William S. Eden was convicted of keeping a barber shop open on Sunday, and appeals. Reversed.

Burnham & Baldwin, for plaintiff.

M. T. Moloney, M. L. Newell, T. J. Scofield, S. P. Shope, Thomas H. Gault, and Otto C. Eigholz, for the People.

CRAIG, C. J.

The plaintiff in error was convicted in the criminal court of Cook county for the violation of an act to prohibit barber shops from being kept open on Sunday, and for a violation of the law he was fined $25. The act was passed at the last session of the legislature, and contained two sections as follows:

‘(1) Be it enacted by the people of the state of Illinois, represented in the general assembly, that it shall be unlawful for any person or persons to keep open any barber shop or carry on the business of shaving, haircutting, or tonsorial work on Sunday, within this state.

‘(2) Any person by himself, agent or employé, violating the provisions of section 1 of this act shall, upon conviction thereof, be fined in any sum not exceeding two hundred ($200) dollars for each and every offense.’

It is contended in the argument that by the act in question that part of the fourteenth amendment to the United States constitution (section 1) has been violated which reads as follows: ‘Nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.’ It is also contended that the act violates the following sections of the Illinois constitution of 1870, to wit: Article 2, § 2: ‘No person shall be deprived of life, liberty, or property without due process of law.’ Also article 4, § 22, the general clause of which reads: ‘In all other cases where a general law can be made applicable, no special law shall be enacted.’ It is conceded in the argument that if the legislature had enacted a law prohibiting all business on Sunday, its validity could not be questioned; that such a law would violate none of the constitutional provisions relied upon. The common law of England, as adopted in this state as a part of our jurisprudence, does not prohibit the citizen from pursuing his ordinary labor on Sunday. Nor is a contract entered into between two parties in this state void because executed on Sunday. Rex v. Brotherton, 1 Strange, 702; Drury v. Defontaine, 1 Taunt. 131; Sayles v. Smith, 12 Wend. 57;Richmond v. Moore, 107 Ill. 431. On the other hand, at common law Sunday has always been regarded dies non juridiens,-a day on which courts could not transact other than necessary or ministerial business. In England, however, the law which permitted the transaction of business and the pursuit of one's ordinary labor was changed by St. 29, Car. II., which provides that ‘no tradesman, artificer, workman, laborer or other person whatsoever shall do or exercise any worldly business or work on the Lord's day,’ works of necessity and charity being excepted. This statute has substantially been adopted by the legislatures of many of the states in the Union. This state has not, however, followed the other states in the adoption of the English statute, but we have legislated on this subject for ourselves in a manner thought to be for the best interest of our people. That legislation will be found in section 261 of our Criminal Code, as follows: ‘Whoever disturbs the peace and good order of society by labor (works of necessity and charity excepted) or by any amusement or diversion on Sunday shall be fined not exceeding $25. This section shall not be construed to prevent watermen and railroad companies from landing their passengers or watermen from loading and unloading their cargoes or ferrymen from carrying over the water travelers and persons moving their families on the first day of the week, nor to prevent the due exercise of the rights of conscience by whomever thinks proper to keep any other day as a Sabbath.’ The preceding section (260) provides Sunday shall include the time from midnight to midnight. There is a wide and well-marked distinction between the English statute and ours. The English statute prohibits labor and business on Sunday, while our statute merely prohibits labor and amusement which disturbs the peace and good order of society. In Richmond v. Moore, supra, in speaking of the difference between the two statutes, it is said: ‘A mere glance at that and our statute will show that they are materially different. That prohibits labor and business; ours only prohibits labor or amusement that disturbs the peace and good order of society. The offense by that statute is the performance of labor or business, and by ours it is the disturbance of the peace and good order of society. The British statute is much more comprehensive in its purpose and language than ours. Ours only prohibits labor that disturbs the peace and good order of society, not naming business, whilst the British statute renders the mere act of labor or business penal.’

Under the law of this state as it existed prior to the passage of the act in question, each and every citizen of the state was left perfectly free to labor and transact business on Sunday, or refrain from labor and business, as he might choose, so long as he did not disturb the peace and good order of society. By the act in question an attempt has been made by the legislature to inaugurate a radical change in the law as to a class of the laboring element of the state, the barbers. This statute, as has been seen, declares: ‘That it shall be unlawful for any person or persons to keep open any barber shop or carry on the business of shaving, haircutting or tonsorial work on Sunday.’ That act is plain, and its meaning is obvious. The owner of a place who carries on the business of a barber is prohibited from doing any business whatever during one day in the week. He may have in his employ a dozen men, and yet during one day in seven he is deprived of their labor, and also deprived of his own labor. The income derived from his place and his own labor and the labor of his employés is his property, but the legislature has by the act taken that property from him. The journeyman barber who works by the day or week or for a share of the amount he may receive from customers for his services is by the law denied the right of laboring one day in the week. He may rely solely upon his labor for the support of himself and family, his labor may be the only property that he possesses, and yet this law takes that property away from him. His labor is his capital, and that capital is all the property he owns. Can a law which takes that from the laborer be sustained? The constitution of the United States says the state shall not deprive any person of property without due process of law, and our state constitution declares the same thing. What is understood by the term ‘due process of law’ is not an open question. ‘Due process of law’ is synonymous with ‘law of the land,’ and ‘the law of the land’ is ‘general public law, binding upon all the members of the community, under all circumstances; and not partial or private laws, affecting the rights of private individuals or classes of individuals.’ Millett v. People, 117 Ill. 294, 7 N. E. 631. Is the act in question alone binding upon all the members of the community? A glance at its provisions affords a negative answer. The act affects one class of laborers, and one class alone. The merchant and his clerks, the restaurant with its employés, the clothing house, the blacksmith, the livery stable, the streetcar lines, and the people engaged in every other branch of business, are each and all allowed to open their respective places of business on Sunday, and transact their ordinary business if they desire, but the barber, and he alone, is required to close his place of business. The barber is thus deprived of property without due process of law, in direct violation of the constitution of the United States and of this state. In Millett v. People, supra, where the validity of an act of the legislature requiring owners and operators of coal mines to weigh coal in a certain specified manner arose, it was held not competent for the legislature to single out owners and operators of coal mines, and provide that they should bear burdens not imposed on other owners of property or employers of labor, and prohibit them from making contracts which it is competent for other owners of property or employers of labor to make. Such legislation cannot be sustained as an exercise of the police power. In Frorer v. People, 141 Ill. 171, 31 N. E. 395, where the validity of an act of the legislature arose which prohibited persons engaged in mining or manufacturing business from keeping a store for furnishing supplies,...